Citation Nr: 1446844
Decision Date: 10/22/14 Archive Date: 10/30/14
DOCKET NO. 12-17 156 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Detroit, Michigan
THE ISSUE
Entitlement to a disability rating in excess of 10 percent for the service-connected left knee degenerative arthritis, history of chronic synovitis and chondromalacia patella.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
S. Nathanson, Associate Counsel
INTRODUCTION
The Veteran had active service from November 1970 to November 1974.
This matter comes to the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision issued by the RO.
The Veteran testified from the RO by means of videoconference technology at a hearing with the undersigned Veterans Law Judge in January 2013. A copy of the transcript is associated with the claims file.
This matter was remanded for additional development of the record in March 2014. For the reasons below, the indicated development has not been completed.
The appeal is being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part.
REMAND
The Veteran testified, in January 2013, that he received treatment at a VA facility for his service-connected left knee disability. At that time, there were no VA treatment records associated with the claims file.
In March 2014, the Board remanded this matter in order to obtain and associate with the claims file all VA treatment records referable to the Veteran's left knee disability.
In April 2014, the Appeals Management Center (AMC) sent the Veteran a letter and requested that he provide the location of and dates when he sought treatment at the VA facility. The Veteran did not provide a response.
Subsequently, in May 2014, the VA examiner indicated that, in addition the claims file, he reviewed the CPRS and VISTA records. To date, the only VA medical records on file are the Veteran's examinations reports.
Although the Board is cognizant that the duty to assist is not a "one way street" and the Veteran failed to respond the AMC's request for information, the Board finds that the AMC did not substantially comply with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998).
Specifically, based on the VA examiner's reference to reviewing the Veteran's CPRS and VISTA records, it appears that there are outstanding VA records that are readily obtainable that the AMC did not request nor obtain.
Therefore, the Board finds that a remand is necessary in order for the AOJ to obtain the records. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following action:
1. The AOJ should take appropriate steps to contact the Veteran in order obtain and associate with the record copies of any outstanding VA medical records (to include CPRS and VISTA records) referable to treatment rendered to the Veteran for the left knee degenerative arthritis, history of chronic synovitis and chondromalacia patella from January 2010 to the present.
The AOJ should document all attempts to obtain the records and should also document if the records are unavailable or do not exist.
The Veteran should be notified that he may submit medical evidence and clinical records to support his claim.
2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all of the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response.
Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).